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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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FIVE BOROUGH BICYCLE CLUB, et al.,

Plaintiffs,

-against- 07 Civ. 2448 (LAK)

THE CITY OF NEW YORK, et al.,

Defendants.

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OPINION

Appearances:

Jeremy Feigelson

Steve Vaccaro

DEBEVOISE &PLIMPTON LLP

Attorneys for Plaintiffs

Gabriel Taussig

Robin Binder

Sheryl Neufield

Michelle Goldberg-Cahn

Assistant Corporation Counsel

MICHAEL A. CARDOZO

CORPORATION COUNSEL OF THE CITY OFNEW YORK

Attorneys for Defendants

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2

LEWIS A. KAPLAN,District Judge.

Life in this great city involves infinite conflicts between the desires of some to act and

express themselves whenever, wherever, and however they wish and the desires of others for freedom

from such behavior. The inescapable fact is that one persons freedom can be another persons

burden or annoyance, often even where each is acting in entire good faith. The difficult task of

municipal government is to strike appropriate balances that promote the general welfare and

reconcile, so far as possible, the competing interests.

This case presents just such a conflict. Plaintiffs, advocates of large group bicycle

rides through New York City (the City), claim that they should be free to ride in large groups

wherever, whenever, and however they wish, free from municipal regulation. The City seeks to

regulate these events by requiring permits that would enable the New York City Police Department

(the NYPD) to know where and when the groups will ride in order to facilitate the flow of traffic

and protect the safety of all concerned. Plaintiffs contend that this infringes upon their constitutional

rights to travel, expressive association, and free speech. They move here for a preliminary injunction

prohibiting enforcement of the permitting scheme.

Having considered the evidence, the Court is not persuaded that plaintiffs despite

their good faith and earnestness have met the high standard that must be satisfied before legitimate,

content-neutral governmental actions that only incidentally affect the exercise of constitutional rights

may be enjoined prior to trial.

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6

Jackson Decl. 1-3.

7

Id. 2.

8

In New York, a Critical Mass ride takes place in Brooklyn on the second Friday of each

month, whereas a ride takes place in Manhattan on the last Friday. Son Decl. 12.

9

See id. 16 (largest Critical Mass ride witnessed involved 1,200 cyclists).

10

Blythe Decl. 11; Gosciak Decl. 22; Nelson Decl. 10; Shura Decl. 7; Son Decl. 13.

11

E.g., Gosciak Decl. 14-15; Nelson Decl. 11, 14; Son Decl. 8, 10.

12

Son Decl. 14; Pucher Decl. 75.

13

Son Decl. 14.

for students and others, which has grown in size in recent years to include about 250 participants,6

for the purpose of teaching participants about New York City culture and history.7

At least one group bicycle ride has a political message. So called Critical Mass rides

take place in a number of cities across the country, including New York, on either the second or the

last Friday of each month, and can include over a thousand participants. Cyclists such as plaintiffs8 9

Sharon Blythe, Josh Gosciak, Elizabeth Shura, Madeline Nelson, and Luke Son participate in10

Critical Mass not only to meet other cyclists, but also to advocate for bicycling as a safe and clean

alternative to driving cars. Cyclists claim also to enjoy Critical Mass because of the rides

11

spontaneity and lack of a fixed route. Cyclists toward the front of the ride [are said to] make ad12

hoc decisions as to which direction to take based on which route they think will be safe or

interesting, and often splinter groups will result because there is no requirement or process for

reaching a consensus on a single route.13

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14

See Pucher Decl. 21-29.

15

Caneco Decl. 1.

16

Id. 4.

17

Id.

18

Gannon Decl. 2.

19

Id. 14.

B. Potential Hazards

Although group ride participants argue that traveling in groups is safer for cyclists

than traveling alone, group bicycle rides endanger and inconvenience other users of public14

roadways. According to Lieutenant Caneco, a New York City police officer who has witnessed

several Critical Mass rides and whose evidence the Court credits, groups of approximately 50 or15

more bicycles disrupt pedestrian and vehicular traffic, such that ordinary citizens who happen to be

in the vicinity of the ride become trapped when the ride approaches. Cyclists in groups of that size16

tend to stay together and use the entire lane, thereby making it difficult for vehicles to pass the

group, without cutting into oncoming traffic. As explained by Lieutenant Gannon, a police officer17

who has coordinated parades in Manhattan, [w]hen a group of bicyclists travels together, there are18

no natural spaces between the bicyclists. Other vehicles, including nonparticipant cyclists, therefore

have difficulty making turns or merging into lanes occupied by the group. Thus, these vehicles will

have to slow down and maneuver in such as way so as to try to get behind the group of bicyclists so

that they can negotiate the lanes and make turns safely. Such maneuvering impacts on the flow of

traffic and presents the potential for traffic accidents.19

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20

Caneco Decl. 5; Gannon Decl. 13-14.

21

E.g., Son Decl. 19.

22

See Caneco Depo. 92, 96 (corking involves impeding traffic flow at the speed thats

allowed, then dictating the speed and stopping red signals);Bray v. City of New York,

356 F. Supp. 2d 277, 279 (S.D.N.Y. 2004) (describing the corking practice of Critical Massparticipants); see also Critical Times: Sydney Critical Mass Newsletter, Jan. 19 1996

(available at http://www.dr-edg.f2s.com/cmass/cmevents/cmtimes/CTimes3.html) (last

visited April 16, 2007).

23

See Caneco Decl. 5.

24

See Gannon Decl. 4-5; Caneco Depo. 163.

Moreover, some members of large groups of cyclists have been known to disregard

traffic rules by running red lights, traveling along roadways where bicycles are p rohibited, riding

against the flow of traffic, and failing to use traffic signals, thus preventing pedestrians and vehicular

traffic from predicting the cyclists movements and crossing intersections safely. Some Critical20

Mass participants have engaged in conduct called corking, riding through traffic lights, taking21

up entire roadways, or dismounting their bicycles to block intersections so as to prevent cars from

splintering the group or otherwise becoming entangled in its midst.22

Groups smaller than 50 present fewer problems. Their impact on traffic flow and

safety is comparatively minor because of their relatively smaller sizes. Both Lieutenants Caneco23

and Gannon agree, however, that groups smaller than 50 can pose significant traffic and safety issues

as well.24

The Court accepts the evidence of both Lieutenants Caneco and Gannon that the

problems associated with large group bicycle rides can be cured or greatly reduced by a permitting

scheme that ensures that the police know a groups route in advance. Having advance knowledge of

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25

Caneco Decl. 6.

26

Gannon Decl. 8.

27

Id. 9;see, e.g., Caneco Depo. 171-73.

28

Gannon Decl. 10.

29

See id. 9.

the timing and whereabouts of a group ride allows the police to reroute pedestrian and vehicular

traffic if necessary, block off the groups route so that it may proceed unimpeded and, of course,25

enforce traffic rules more effectively.

Furthermore, the impact of a group of 50 or more cyclists depends upon the streets

being traveled, the number of lanes being occupied, the speed o f the group, whether there is street

construction nearby, the time and day of the w eek, and the number and size of other events taking

place in the City at that time. It is possible that some groups of that size will proceed safely and26

with no detrimental impact on traffic. But context matters, and the NYPD is best able to minimize

27

a groups impact by coordinating the groups movements with those of others on the road. For28

example, as Lieutenant Gannon explained, several independent groups of 50 cyclists, each of which,

taken alone, might have a small impact on traffic, may find themselves riding along the same or

similar routes at the same time, thus concentrating and increasing their overall impact. The NYPD

would be able to prevent this if it were able to coordinate the groups movements. In sum, a29

permitting scheme enables the NYPD to orchestrate the movements of various groups of different

sizes and ensure that they proceed at times and places where their impact on each o ther, other users

of the roadways, and the City as a whole is kept to a minimum.

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30

N.Y.C. Ad. C. 10-110(a).

31

Id. 10-110(c).

32

38 R.C.N.Y. 19-03(b)(2).

II. The Parade Regulations

The City regulates parades, processions, and other mass gatherings that take place on

public roadways through New York City Administrative Code 10-110, and Title 38 of the Rules

of the City of New York, Sections 19-01 through 19-04 (collectively, the Parade Regulations). This

case concerns the latest amendment to the Parade Regulations to make them apply specifically to

group bicycle rides of 50 or more participants.

A . Parade Permits and Applications

The Parade Regulations provide in relevant part as follows:

A procession, parade, or race shall be permitted upon any street or in any public

place only after a written permit therefor has been obtained from the police

commissioner. Application for such permit shall be made in writing, upon a suitable

form prescribed and furnished by the [NYPD], not less than thirty-six hours previous

to the forming or marching of such procession, parade or race30

Parading without a permit is punishable by a fine of up to $25 and/or up to 10 days in jail.31

Permit applications must include, among other things, (1) the date, time, and route

of the parade, (2) the locations and approximate times for formation and dismissal, (3) the number

of participants, (3) the width of the roadway to be occupied by the event, and (4) the identity of a

chief officer, along with his or her address and telephone number. The ordinance provides that32

the chief officer shall be responsible for the strict observance of all rules and regulations included

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33

N.Y.C. Ad. C. 10-110(a)(5).

34

Id. 10-110(a).

35

Id. 10-110(a)(1). Parades that will be disorderly in character or tend to disturb the

public peace are those that propose activity that would violate certain sections of the Penal

Law and otherwise present an unreasonable danger to the health or safety of the applicant,parade participants or other members of the public, or cause damage to public or private

property. 38 R.C.N.Y. 19-01(a);see alsoid. 19-04(d)(vi) (application must be denied

on same grounds).

36

38 R.C.N.Y. 19-04(d).

37

N.Y.C. Ad. C. 10-110(a)(2).

in said permit.33

Subject to exceptions not relevant here, the Police Commissioner is required to grant

a parade permit, after due investigation, unless there is good reason to believe that the proposed34

procession, parade or race will be disorderly in character or tend to disturb the public peace, or35

if the application is incomplete, contains a material falsehood, or proposes an event that would (a)

conflict with a previously approved event, (b) substantially or unreasonably interfere with traffic in

the area contiguous to the parade route, (c) prevent proper fire and police protection or ambulance

services, (d) violate the law, or (e) violate certain sections of the Penal Law and otherwise present

an unreasonable danger to the health and safety of the public or damage public or private property.36

The Parade Regulations provide also that certain parade routes are off-limits. The

Police Commissioner is required to deny applications that seek use of any public place between the

hours of 9:00 a.m. and 6:30 p.m., except on Sundays and holidays, that ordinarily is subject to great

congestion or traffic and is chiefly of a business or mercantile character. The Commissioner must37

deny also applications that propose use of Fifth Avenue in M anhattan unless the event in question

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38

38 R.C.N.Y. 19-04(d)(viii). Fifth Avenue is defined to include Fifth Avenue in

Manhattan south of 114 Street and north of 15 Street. See Binder Decl. Ex. A (notice of

adoption of amendment to 38 R.C.N.Y. 19-02).

39

N.Y.C. Ad. C. 10-110(a)(4).

40

38 R.C.N.Y. 19-01(b).

41

N.Y.C. Ad. C. 10-110(a)(3).

42

38 R.C.N.Y. 19-02.

was held at that location prior to the promulgation of the Parade Regulations. Special permits38

for occasions of extraordinary public interest, however, may be granted for any time and public

place with the written approval of the mayor. Such occasions are defined to include celebrations39

organized by the City honoring the armed forces; sports achievements or championships; world

leaders and extraordinary achievements of historic significance.40

When a parade permit is granted, it must designate specifically the route through

which the procession, parade or race shall move, and it may also specify the width of the roadway

to be used, and may include such rules and regulations as the police commissioner may deem

necessary.41

B. Parade or Procession

1. Prior Definition

Section19-02 of the City Rules defines what constitutes a parade or procession

requiring a permit. Prior to January 26, 2007, a parade or procession was defined to include any42

march, motorcade, caravan, promenade, foot or bicycle race, or similar event of any kind, upon any

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43

People v. Bezjak, 11 Misc. 3d 424, 433, 812 N.Y.S.2d 829, 837 (N.Y. Crim. Ct. N.Y. Co.

2006).

44

Id. at 436; 812 N.Y.S.2d at 839.

45

SeePeople v. Barrett, 13 Misc. 3d 929, 821 N.Y.S.2d 416 (N.Y. Crim. Ct. N.Y. Co. 2006)

(dismissing charges of parading without a permit and declining to reach issue ofconstitutionality of Parade Regulations); City of New York v. Times Up, Inc., 2006 WL

346491 (Sup. Ct. N.Y. Co. Feb. 14, 2006) (denying Citys motion for preliminary

injunction prohibiting bicycle rides en masse without permits).

InBray v. City of New York, 346 F. Supp. 2d 480 (S.D.N.Y. 2004), plaintiffs moved for a

preliminary injunction prohibiting the City from seizing bicycles of Critical Mass

participants who were not charged with a crime or violation. The City cross-moved for a

preliminary injunction prohibiting Critical Mass rides from occurring without permits.

public street or roadway. This definition was not to last.

In 2004, the NYPD for the first time attempted to enforce the Parade Regulations

against group bicycle rides. Several group riders were arrested and charged with parading without

a permit, which led to litigation in state court over the constitutionality of the Parade Regulations and

their applicability to group bicycle rides. In one case, a court held that the parade regulations were

unconstitutionally vague because they gave the Police Commissioner unfettered discretion to

determine that any particular event . . . fall[s] within the amorphous definition of parade or

procession and, thus, requires a permit. The court noted that the Parade Regulations vagueness

43

could be cured by making the definition of parade or procession more precise by set[ting] forth

the minimum number of participants to which [the permitting scheme] applies.44

In other cases, courts dismissed charges against cyclists of parading without a permit

and denied an injunction sought by the City to prevent bicycle riding en masse without a permit

on the ground that the Parade Regulations definition of parade or procession did not apply to

group bicycle rides.45

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Judge Pauley declined to exercise supplemental jurisdiction over the Citys cross motion

and held that the motion nevertheless was barred by the doctrine of laches. See id. at 491-

92. InBray v. City of New York, 356 F. Supp. 2d 277, Judge Pauley again denied a motion

by the City for a preliminary injunction on jurisdictional grounds.

46

Mathieu Decl. Ex A.

47

See Al Baker,Police Move to Ease Proposed Rules on Permits for Protests, NEW YOR K

TIMES, Aug. 19, 2006.

48

Mathieu Decl. Ex. B.

49

Id. Ex. C.

2. Proposals to Amend

In response to these holdings, the NYPD in July 2006 proposed amending Section 19-

02 to clarify the definition of parade or procession. The first proposal was to include in that

definition any procession or race which consists of a group of 20 or more vehicles, bicycles, or other

devices moved by human power, or ridden or herded animals proceeding together upon any public

street or roadway.46

When this proposal met with public opposition, the NYPD in October 200647

proposed that parade or procession be defined to include any procession or race which consists

of a recognizable group of 30 or more vehicles, bicycles, or other devices moved by human power,

or ridden or herded animals proceeding together upon any public street or roadway.48

Finally, on January 26, 2007 , the NYPD announced that it would adopt a definition

of parade or procession that would include any procession or race which consists of a

recognizable group of 50 or more pedestrians, vehicles, bicycles, or other devices moved by human

power, or ridden or herded animals proceeding together upon any public street or roadway. The49

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50

SeeN.Y.C. Charter 1043 (proposed agency rules must be published thirty days before

effective date).51

The Court denied a temporary restraining order principally in consequence of plaintiffs

unreasonable delay in seeking it. See Tr., March 29, 2007, at 50-53.

52

E.g.,Intl Equity Invs., Inc. v. Opportunity Equity Partners, Ltd., 427 F. Supp. 2d 491, 497

(S.D.N.Y. 2006) (quotingMerkos L'inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc.,

312 F.3d 94, 96 (2d Cir. 2002)).

amendment to Section 19-02 became effective February 25, 2007, thirty days after publication.50

II. This Case

Plaintiffs commenced this action on March 27, 2007. They seek a preliminary

injunction barring the City from enforcing the Parade Regulations as amended against group bicycle

rides. Plaintiffs contend that the regulations violate their rights to travel, free speech, and expressive51

association. They argue also that the regulations are unconstitutionally vague.

Discussion

I. Pre liminary Injunction Standard

A party seeking a preliminary injunction ordinarily must show (1) irreparable harm

in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b)

sufficiently serious questions going to the merits to make them a fair ground for litigation and a

balance of hardships tipping decidedly in the movants favor. Where, however, a movant seeks to52

enjoin government action taken in the public interest pursuant to a statutory or regulatory scheme,

it may succeed only by demonstrating a likelihood of success on the merits in addition to irreparable

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Million Youth March, Inc. v. Safir, 18 F. Supp. 2d 334, 339 (S.D.N.Y. 1998) (quotingJolly

v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996)).

54

Irish Lesbian and Gay Org. v. Giuliani, 918 F. Supp. 732, 740 (S.D.N.Y. 1996) (quoting

Jolly, 76 F.3d at 473-74 (quoting Tom Doherty Assocs., Inc. v. Saban Entmt, Inc., 60 F.3d

27, 33-34 (2d Cir.1995)) [hereinafter ILGO 1996].

55

Cpt. at 33.

56

See, e.g., Million Youth March, 18 F. Supp. 2d at 339 (application for preliminary

injunction ordering the City to permit the plaintiff to conduct a rally despite Parade

Regulations sought to enjoin governmental action taken in the public interest pursuant to

a regulatory scheme).

57

Id. (quotingElrod v. Burns, 427 U.S. 347, 373-74 (1976) (citingNew York Times Co. v.

United States, 403 U.S. 713 (1971));Bery v. City of New York, 97 F.3d 689, 693 (2d Cir.

harm. Further, where the injunction sought will provide the movant with substantially all the53

relief sought, and that relief cannot be undone even if the defendant prevails at a trial on the merits,

the moving party must make a clear or substantial showing of a likelihood of success.54

In this case, plaintiffs seek to enjoin the City from enforcing the Parade Regulations

against group bicycle rides of 50 or more and retaliating and selectively prosecuting the laws against

[Blythe, Gosciak, Shura, Nelson, and Son] based on their participation in group bicycle rides,

including . . . Critical Mass. Plaintiffs thus seek to enjoin governmental action ostensibly taken55

in the public interest pursuant to a regulatory or statutory scheme. They therefore must demonstrate

a likelihood of success on the merits in order to establish their right to a preliminary injunction.56

II. Irreparable Harm

The loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury. Plaintiffs allegation that a preliminary injunction57

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1996) (Violations of First Amendment rights are commonly considered irreparable injuries

for the purposes of a preliminary injunction.)).

58

Id. (citingILGO 1996, 918 F. Supp. at 739;Irish Lesbian and Gay Org. v. Bratton, 882 F.

Supp. 315, 319 (S.D.N.Y. 1995)).

59

See Weight Watchers Intl., Inc. v. Luiginos, Inc., 423 F.3d 137, 144 (2d Cir. 2005).

60

See Citibank, N.A. v. Citytrust, 756 F.2d 273, 277 (2d Cir. 1985).

61

Metro. Council, Inc. v. Safir, 99 F. Supp. 2d 438, 441 (S.D.N.Y. 2000) (citing Million

Youth March, 18 F. Supp. 2d at 340).

62

Id. (quotingRobins Island Preserv. Fund, Inc. v. Southold Dev. Corp., 959 F.2d 409, 423

(2d Cir. 1992); citingMillion Youth March, 18 F.Supp.2d at 340).

is necessary to forestall the imminent loss of their First Amendment freedoms ordinarily would

suffice to establish a likelihood of irreparable harm. The Court nevertheless must consider the58

impact of plaintiffs delay in making their motion.

Undue delay in seeking interim relief undercuts the sense of urgency that ordinarily

accompanies preliminary injunction motions and suggests that irreparable harm is not occurring or

imminent. In some cases, undue delay may justify denial of interim relief altogether. Where the59 60

alleged irreparable injury is a prospective constitutional violation, however, the question of

plaintiffs delay is appropriately addressed under the rubric of laches, not the irreparable harm prong

of the preliminary injunction standard.61

Laches is an equitable doctrine applied to deny relief in the courts discretion when

it is clear that a plaintiff unreasonably delayed in initiating an action and a defendant was prejudiced

by the delay. Plaintiffs filed this motion more than eight weeks after the NYPD announced that62

it would amend Section 19-02 to include group bicycle rides of 50 or more participants in the

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63

Tr., March 29, 2007, at 50-53;see Million Youth March, 18 F. Supp. 2d at 340.64

See, e.g., Natl Council of Arab Ams. v. City of New York, 331 F. Supp. 2d 258, 265

(S.D.N.Y. 2004) (rally prior to start of 2004 Republican National Convention);ILGO 1996,

918 F. Supp. at 748 (parade on St. Patricks Day); WPIX v. League of Women Voters, 595

F. Supp. 1484, 1494 (S.D.N.Y. 1984) (televised presidential debate).

65

Tr., March 29, 2007, at 43-50.

definition of parade or procession and more than four weeks after the amendment went into effect.

Moreover, as the Court has noted, the City has suffered some prejudice by being forced to prepare

for and contest litigation involving significant constitutional issues in a short period of time.63

Nevertheless, while that delay was sufficient to justify denial of interim relief insofar as plaintiffs

sought a preliminary injunction in connection with the March 30, 2007 Critical Mass ride, the Court

is not persuaded that it warrants denial of interim relief altogether.

Unlike cases in which a plaintiff delayed in moving for a preliminary injunction in

connection with a single, isolated event, plaintiffs here seek an injunction in connection with an

64

indefinite number of group bicycle rides that may take place in the future. The motion therefore need

not be litigated before a fixed and imminent deadline after which the action will become moot.

Furthermore, the Court granted the City additional time in which to submit affidavits, thus giving65

it a full opportunity to oppose the motion. Accordingly, any prejudice the City may have suffered as

a result of plaintiffs delay has been cured. Plaintiffs should not be denied interim relief from

possible constitutional violations simply because of their delay in seeking it.

III. Likelihood of Success on the Merits

A. Right to Travel

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66

Town of Southold v. Town of East Hampton, 477 F.3d 38, 53 (2d Cir. 2007) (quotingDunn

v. Blumstein, 405 U.S. 330, 338 (1972)).

67

Id. (The right to travel encompasses at least three different components: [i]t protects the

right of a citizen of one State to enter and to leave another State, the right to be treated asa welcome visitor rather than an unfriendly alien when temporarily present in the second

State, and, for those travelers who elect to become permanent residents, the right to be

treated like other citizens of that State. (quoting Saenz v. Roe, 526 U.S. 489, 500 (1999)).

68

Ramos v. Town of Vernon, 353 F.3d 171, 176 (2d Cir. 2003);King v. New Rochelle Mun.

Hous. Auth., 442 F.2d 646, 648 (2d Cir.), cert. denied, 404 U.S. 863 (1971);see Spencer

v. Casavilla, 903 F.2d 171, 174 (2d Cir. 1990) ([T]he Constitution . . . protects the right

to travel freely within a single state.).

The Supreme Court has not expressly embraced or rejected a constitutional right to

intrastate travel, Memorial Hosp. v. Maricopa County, 415 U.S. 250, 255-56 (1974)

(declining to decide issue), although it has cast doubt on whether such a right exists,see id.

at 255 (Even a bona fide residence requirement would burden the right to travel if travel

meant merely movement.). As the District of Columbia Circuit has noted, while the

Supreme Court on occasion has suggested that some right to free movement may exist,

those comments are only dicta the cases involved travel across borders, not mere

locomotion.Hutchins v. District of Columbia , 188 F.3d 531, 537 (D.C. Cir. 1999) (citing

cases). Furthermore, the Court has made clear that the right to international travel is

afforded less protection than the right to interstate travel,see Haig v. Agee, 453 U.S. 280,

306-07 (1981) (lower standard of review applicable to laws burdening international travel,

as opposed to interstate travel), thus indicating that the right to move across state borders

is fundamental, whereas the broader right to move about freely is not. SeeHutchins, 188

F.3d at 537 (Since the right to free movement would cover both interstate and internationaltravel, Agee at least implies that the right recognized by the Court is decidedly more

narrow.).

Courts appear to be split on whether the Constitution contemplates a right of free

movement, restriction of which would trigger strict scrutiny analysis. CompareWardwell

v. Bd. of Educ., 529 F.2d 625, 627 (6th Cir. 1976) (We find no support for plaintiffs

theory that the right to intrastate travel has been afforded federal constitutional protection),

Wright v. City of Jackson, 506 F.2d 900, 901-02 (5th Cir. 1975) (Supreme Court precedent

[F]reedom to travel throughout the United States has long been recognized as a basic

right under the Constitution. While the right to travel ordinarily refers to the right of a citizen66

to migrate freely from state to state, the Second Circuit recognizes also a constitutional right to67

intrastate travel or the right to free movement. Any such right, however, is not unbounded.68

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18

did not support the proposition that there is a fundamental constitutional right to

commute which would cause the compelling governmental purpose test . . . to apply

(citingEctor v. City of Torrance, 10 Cal. 3d 129, 109 Cal. Rptr. 849, (1973), cert. denied,

415 U.S. 935 (1974)), with Johnson v. City of Cincinnati, 310 F.3d 484, 496-98 (6th Cir.

2002) (recognizing fundamental right to travel locally through public spaces and

roadways),Lutz v. City of York, 899 F.2d 255, 268 (3d Cir. 1990) (recognizing right to

move freely through a state), King, 442 F.2d 646, 647-48 (2d Cir.1971) (durationalresidency requirements applied to in-state travelers treated the same as those applied to out-

of-state travelers), Cole v. Housing Auth. of Newport, 435 F.2d 807 (1st Cir. 1970)

(invalidating residency requirement as applied to in-state right travelers because right to

intrastate travel assumed to have a constitutional source).

69

Soto-Lopez v. New York City Civil Serv. Commn, 755 F.2d 266, 278 (2d Cir. 1985).

70

Id. (internal citations and quotations omitted; emphasis in original).

71

Town of Southold, 477 F.3d at 54 (quoting Cramer v. Skinner, 931 F.2d 1020, 1031 (5thCir.1991) (internal alteration omitted); citingMiller v. Reed, 176 F.3d 1202, 1205 (9th Cir.

1999) ([B]urdens on a single mode of transportation do not implicate the right to interstate

travel.); City of Houston v. F.A.A., 679 F.2d 1184, 1198 (5th Cir. 1982) (passengers do not

possess a constitutional right to the most convenient form of travel)).

72

Maxwell v. City of New York, No. 93 Civ. 5834 (MBM), 1995 WL 244501, *7 (S.D.N.Y.

Apr. 27, 1995) (quoting Shapiro v. Thompson, 394 U.S. 618, 634 (1969)).

When a statute or regulation has [m]erely . . . an effect on travel, it does not raise

an issue of constitutional dimension. A statute implicates the constitutional right to travel when69

it actually deters such travel, or when impedance of travel is its primary objective, or when it uses

any classification which serves to penalize the exercise of that right. Furthermore, travelers do70

not have a constitutional right to the most conven ient form of travel, and minor restrictions on travel

simply do not amount to the denial of a fundamental right.71

A government intrusion on the right to travel will be upheld if the intrusion is

deemed necessary to promote a compelling governmental interest. [G]overnmental restrictions

72

upon freedom to travel are to be weighed against the necessity advanced to justify them, and a

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73

Id. (quoting United States v. Davis, 482 F.2d 893, 913 (9th Cir. 1971) (citingAptheker v.

Sec. of State, 378 U.S. 500, 508 (1964))).

74

Cpt. 70.

75

No. 96 Civ. 0467(JSM), 1998 WL 788791 (S.D.N.Y. Nov. 10, 1998).

76

Id. at *1.

restriction that burdens the right to travel too broadly and indiscriminately cannot be sustained.73

1. Permit Requirement

Plaintiffs contend that the Parade Regulations violate the right to travel because they

prohibit travel on the public roadways in groups of 50 without advance approval of their route and

destination by NYPD. But requiring a permit to bicycle in large groups is not the same as74

forbidding or deterring travel or punishing someone for moving about. The Parade Regulations place

no burdens on the rights of cyclists to ride through the streets of New York in groups of 49 or fewer.

Nor do they prevent cyclists altogether from riding in groups of 50 or more. Cyclists are free to ride

through the city in large groups so long as they first obtain a permit.

In Campbell v. Westchester County, the plaintiff argued that his right to intrastate75

travel was infringed when he was prohibited from entering the Westchester Medical Center and its

grounds without first informing the police. The court disagreed, holding that [p]laintiffs right to

travel was . . . not affected at all, as he still was able to go to the medical center and seek treatment

so long as he notified the authorities in advance. This may have made scheduling treatment more

burdensome for plaintiff, but it did not make the travel associated with treatment more

burdensome.76

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77

Mathieu Decl. Ex. D (Bray v. City of New York,No. 04 Civ. 8255 (WHP), Tr., Dec. 9,

2004, at 223).

As in Campbell,the permit requirement here effectively mandates some planning of

large group bicycle rides. But it does not make the act of bicycling in large groups more burdensome

or difficult. The Parade Regulations therefore do not impede, deter, or punish travel throughout New

York City. They simply require cyclists to notify the NYPD before they travel in groups of 50 or

more.

2. Threatened Enforcement Tactics

Plaintiffs argue also that they are deterred from exercising their right to travel because

counsel for the City stated in 2004, during oral argument in a case concerning the constitutionality

of the Citys previous regulatory scheme, that if this group [Critical Mass] doesnt get a permit, [the

City will] stop this group from riding in its present form. . . . [b]y putting up netting, by keeping

people out of the park, by keeping people from leaving the park. 77

If the police actually were to use netting or other means to keep cyclists confined to

a particular area, the right to travel perhaps would be implicated. But a three-year-old statement by

a lawyer during oral argument about how the NYPD might have sought to enforce an obsolete

statutory scheme does not show a likelihood that it actually will use that tactic in the future.

Moreover, to the extent plaintiffs seek to enjoin the use of netting in the future, they

in all likelihood lack standing. There is no evidence that plaintiffs have had this enforcement tactic

used on them in the past. Moreover, it is at best speculative that plaintiffs would (1) join a future

group bicycle ride involving 50 or more participants, (2) violate the Parade Regulations by failing

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78

City of Los Angeles v. Lyons, 461 U.S. 95, 108 (1983) (plaintiff lacked standing to

challenge constitutionality of police use of choke holds during arrests where too much

speculation was required to conclude that plaintiff would be the victim of a choke hold in

the future).

79

Healy v. James, 408 U.S. 169, 182 (1972) (citing cases).

to obtain a permit, and (3) be prevented from traveling by the NYPDs use of netting. In other words,

it is no more than conjecture to suggest that in every instance of [an actual or attempted group

bicycle ride], the police will act unconstitutionally. . . . And it is surely no more than speculation to

assert . . . that [plaintiffs themselves] will . . . be involved in one of those unfortunate instances.78

If the City were to use unlawful enforcement methods and plaintiffs were to suffer

constitutional violations as a result, they could seek redress under 42 U.S.C. 1983 or other relevant

statutes. This motion, however, is not the appropriate vehicle for the Court to consider the

constitutionality of a hypothetical enforcement tactic that years ago was threatened by counsel in

prior litigation.

B. Freedom of Association

While the freedom of association is not explicitly set out in the [First] Amendment,

it has long been held to be implicit in the freedoms of speech, assembly, and petition. The79

Supreme Court distinguishes between freedom of intimate association, which concerns protecting

choices to enter into and maintain certain intimate human relationships . . . against undue intrusion

by the State, and freedom of expressive association, which involves the right to associate for the

purpose of engaging in those activities protected by the First Amendment speech, assembly,

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80

Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984); accordChi Iota Colony of

Alpha Epsilon Pi Fraternity v. City Univ. of New York, 443 F. Supp. 2d 374, 382 (E.D.N.Y.

2006).

81

Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 228 (2d Cir. 1996) (citing Lyng v. UAW, 485

U.S. 360, 366 (1988);Lincoln Federal Labor Union v. Northwestern Iron & Metal Co. , 335

U.S. 525, 530-31 (1949); Connecticut State Fedn of Teachers v. Bd. of Educ. Members,538 F.2d 471, 481 (2d Cir. 1976)).

82

Id. (citingLyng, 485 U.S. at 366, 367 & n.5; Younger v. Harris, 401 U.S. 37, 51 (1971));

see Boy Scouts of Am. v. Dale, 530 U.S. 640, 650 (2000) (determining first whether law

placed significant burden on association rights before conducting compelling interest test).

83

Boy Scouts, 530 U.S. at 648 (quotingRoberts, 468 U.S. at 623).

petition for the redress of grievances, and the exercise of religion.80

As with the right to travel, the right of association is not absolute. First, not all

burdens on the right are of constitutional dimension. [T]he government may engage in some conduct

that incidentally inhibits protected forms of association. Though such inhibiting conduct might81

make it more difficult for individuals to exercise their freedom of association, this consequence does

not, without more, result in a violation of the First Amendment. To be cognizable, the interference

with associational rights must be direct and substantial or significant. Second, if a regulation82

places a constitutionally cognizable burden on the right of association, it nevertheless will be upheld

if it was adopted to serve compelling state interests, unrelated to the suppression of ideas, that

cannot be achieved through means significantly less restrictive of associational freedoms.83

1. Group Bicycle Rides as Expressive Association

Plaintiffs argue that the Parade Regulations restrict their right to expressive rather than

intimate association. Accordingly, the threshold issue is whether participation in group bicycle rides

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84

Universal City Studios, Inc. v. Reimerdes,111 F. Supp. 2d 294, 326 (S.D.N.Y. 2000) ([T]o

say that a particular form of expression is protected by the First Amendment means that

the constitutionality of any regulation of it must be measured by reference to the First

Amendment.), affd, Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).

85

Boy Scouts, 530 U.S. at 648.

86

346 F. Supp. 2d 480 (S.D.N.Y. 2004).

87

Id. at 488 (citingPi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh , 229 F.3d 435, 443

(3d Cir. 2000) (The Supreme Court has cast a fairly wide net in its definition of what

comprises expressive activity.)).

constitutes expressive association protected by the First Amendment that is, whether group bicycle

riding must be regulated by reference to First Amendment jurisprudence. To come within the First84

Amendments ambit, a group must engage in some form of expression, whether it be public or

private.85

The City does not dispute that the group bicycle rides at issue here constitute

expressive association. Indeed, Judge Pauley already has ruled on this issue with respect to Critical

Mass. He held in Bray v. City of New York that because the rides are intended to promote the86

environmental and aesthetic benefits of alternative modes of transportation. . . . and to espouse a

view on an issue of public import namely, the environment, they fall within the wide net cast by

the Supreme Court in defining expressive association.87

Furthermore, 5BBCs rides are intended to instill in participants a greater

understanding of the world and its people through out-of-doors, educational and recreational travel

as well as a sense of leadership, cooperation, and self reliance. Professor Jacksons educational rides

are designed to teach students and others in the Columbia community about New York City culture

and history. As the Supreme Court held inBoy Scouts of America v. Dale , participation in a group

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88

530 U.S. at 649-50.

89

Pl. Mem. 34.

whose general mission is to educate and instill values in young people qualifies as expressive

association.88

2. Impact of the Parade Regulations

The next question is whether the Parade Regulations impose a direct and substantial

or significant burden on plaintiffs association rights so as to trigger the compelling interest test.

a. Group Size

Plaintiffs claim that the Parade Regulations infringe their right to expressive

association by limiting the size of the group. This misreads the regulations. The ordinance simply89

requires groups of 50 or more to obtain permits before traveling together through public places. It

does not prevent groups of certain sizes from associating with one another o r bicycling through New

York City. As will appear, the Court finds that plaintiffs have not established a likelihood of success

in proving that the permit requirement is a direct and substantial burden on the exercise of their

associational rights.

b. Fifth Avenue Restriction

Plaintiffs next argue that the Parade Regulations inhibit association by prohibiting the

use of portions of Fifth Avenue by groups of 50 or more. This is unpersuasive. The prohibition does

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90

See Jackson Decl. 4-5 (bicycle groups travel down Fifth Avenue to view New York

Public Library, Madison Square Park, the Flat iron Building, and the Madison Green

Building).

91

Professor Jackson stated himself that there are obviously alternative routes downtown.

Id. 5.

92

SeeLyng, 485 U.S. at 366 (government may refuse to provide food stamp benefits to

striking workers); Lincoln Fed. Labor Union, 335 U.S. at 530-31 (state may enforce

open-shop law, even though union asserted that closed shop was indispensable to right of

self-organization); Fighting Finest, Inc., 95 F.3d at 228 (city may withdraw official

recognition of boxing team sponsored by police officers association and prohibit

association from posting notices of its boxing matches in police precincts and facilities);

Connecticut State Fedn of Teachers, 538 F.2d at 481 (state may deny teachers union right

of access to school mailboxes, bulletin boards, and meeting rooms)).

not impair the ability of Critical Mass participants to ride together and demonstrate their commitment

to the environment and alternative methods of transportation. Nor does it prevent 5BBC from

conducting group rides that promote world knowledge and leadership. Moreover, while F ifth Avenue

may be home to many important historical sites that are central to Professor Jacksons educational

program, the Parade Regulations do not prevent Professor Jackson from guiding his bicycle tours90

past these sites by taking alternative routes. No evidence suggests that the sites he ordinarily views

from Fifth Avenue could not be viewed from other streets.91

The most that can be said is that the Fifth Avenue restriction makes group rides of 50

or more cyclists less convenient by foreclosing passage through one of New Yorks thoroughfares.

But imposing an inconvenience on expressive association is far from imposing a direct and

substantial or significant burden.92

c. Predetermined Routes

Finally, plaintiffs contend that the requirement that permit applications specify the

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93

Professor Jacksons annual tour of the City follows a different predetermined route each

year. Jackson Decl. 4. This argument therefore does not apply to Professor Jacksons

group rides.

94

Pl. Mem. 34.

95

Ravin Decl. 11.

96

Nelson Decl. 18.

route group rides will take stifles the spontaneity that characterizes Critical Mass and some 5BBC

rides. They argue that spontaneity is an an important aspect of expressive association among93

bicyclists.94

Plaintiffs point to no evidence indicating that spontaneity is a crucial element of

5BBCs message or a necessary means of expressing it. They cite one cyclists affidavit stating that

the absence of fixed routes is an attractive feature of some 5BBC group rides. But being an95

attraction and being an important component of expressive association are two different things. The

Constitution protects the freedom of individuals to associate with one another for expressive

purposes, not the right to use the most attractive, enjoyable, or convenient means of association.

Plaintiffs do offer evidence that spontaneity is central to the message expressed by

Critical Mass rides that bicycles are a viable alternative to cars and have an equal right to the road.

According to one regular Critical Mass participant, [i]f police were directing Critical Mass rides,

the message would be completely different perhaps, that b icyclists need the police to make their

way, or that the police were there to protect the rest of the City from the bicyclists. This is96

unavailing, however. The Parade Regulations make no distinction between bicycles and cars. A

group of 50 or more cars is required to follow a predetermined route as is a group of 50 or more

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97

See id. (I would not participate in Critical Mass if it was required to have a fixed route).

98

See Fighting Finest, Inc., 95 F.3d at 228 (no violation of right to expressive association

where defendant did not prevent the [plaintiffs] from associating together nor burden in

any significant manner their ability to do so.).

99

Million Youth March, 18 F. Supp. 2d at 341 (citing Shuttlesworth v. City of Birmingham,

394 U.S. 147, 152 (1969);Hague v. C.I.O., 307 U.S. 496, 515-16 (1939)).

100

Id. (quoting Cox v. Louisiana, 379 U.S. 536, 554 (1965)).

101

Id. (citingHague, 307 U.S. at 516).

bicycles. The Parade Regulations if anything reinforce the message that bicycles have an equal right

to the road.

While the predetermined route requirement may dissuade some cyclists from

participating in group rides of 50 or more, it does not prevent individuals from joining those rides97

if they choose to do so. Accordingly, the most that can be said is that the predetermined route98

requirement inconveniences cyclists and perhaps makes group rides of 50 o r more less attractive or

enjoyable than they otherwise would be. It does not impose a direc t and substantial or significant

burden on cyclists right to engage in expressive association.

C. Free Speech

Public roadways are traditional public fora for the exercise of First Amendment

rights. Thus, while it is beyond dispute that municipalities have the right to regulate the use of99

city streets and other facilities to assure the safety and convenience of the people in their use,100

that right may not be exercised so as to abridge or deny First Amendment rights.101

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102

United States v. OBrien, 391 U.S. 367, 376 (1968).

103

Universal City Studios,111 F. Supp. 2d at 328.104

See Million Youth March, 18 F. Supp. 2d at 341 n.45 (analysis differs little if at all when

government seeks to regulate expressive conduct as opposed to pure speech (citing OBrien,

391 U.S. at 376-77; Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 298 (1984))).

105

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark, 468 U.S. at 293

(1984)).

[W]hen speech and nonspeech elements are combined in the same course of

conduct, a sufficiently important governmental interest in regulating the nonspeech element can

justify incidental limitations on First Amendment freedoms. The critical point is that nonspeech102

elements may create hazards for society above and beyond the speech elements. They are subject to

regulation in appropriate circumstances because the government has an interest in dealing with the

potential hazards of the nonspeech elements despite the fact that they are joined with expressive

elements. The Supreme Court therefore has held that the government may impose reasonable103

restrictions on the time, place, or manner of speech and expressive conduct, provided the

104

restrictions [1] are justified without reference to the content of the regulated speech, [2] that they

are narrowly tailored to serve a significant governmental interest, and [3] that they leave open ample

alternative channels for the communication of the information.105

1. Bicycle Riding as Speech

The threshold issue once again is whether group bicycle rides constitute expression

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106

Universal City Studios,111 F. Supp. at 326.

107

Arguably, Professor Jacksons bicycle tour of New York City is not expressive in the sense

that Professor Jackson or his students intend to express a message by the act of bicycling.

That is, participants exchange ideas with one another about the history and culture of New

York while they happen to be on bicycles. Those ideas could be expressed in the classroom,

on a bus, in a car, or while walking. See Jackson Decl. 6 (other modes of transportation

could be used but are less desirable); but seeid. 8 ([O]nlookers view us as making a

statement in favor of bicycling in New York City.). The same arguably could be said of

5BBC rides as well. 5BBC potentially could teach its clients about leadership, self reliance,

and world knowledge without taking them on bicycle rides.

The Court need not decide whether Professor Jacksons or 5BBCs rides amount to

expressive conduct, however, as group bicycle riding as a whole is an activity that carriesthe potential for expression and therefore must be regulated with reference to First

Amendment doctrine. And in any event, as will become clear, regardless of the

expressiveness of these rides, the Parade Regulations do not violate the First Amendment.

108

See OBrien, 391 U.S. 367 at 376-77 (burning a draft card may have expressive elements

that are subject to First Amendment protection); accord Universal City Studios,111 F.

Supp. 2d at 326 (computer code may be both functional and expressive).

such that they must be regulated by reference to First Amendment jurisprudence. In many106

circumstances, the act of riding a bicycle is unrelated to expression. People ride their bicycles simply

because they find that to be an enjoyable, convenient, or cost effective means of traveling, not

because they wish to convey an idea. In those cases, bicycle riding is pure conduct. But bicycle riding

can combine speech and non-speech elements. Critical Mass participants, for example, ride bicycles

to express the idea that there are viable and environmentally friendly alternatives to cars.107

Accordingly, it cannot be said that group bicycle riding always is pure conduct that may be regulated

without reference to First Amendment concerns.

108

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109

Ward, 491 U.S. at 791 (citing Clark, 468 U.S. at 295).

110

Id. (citingRenton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986)).

111

See Pl. Mem. 36.

112

Ward, 491 U.S. at 792 (quotingBoos v. Barry, 485 U.S. 312, 320 (1988)).

113

Def. Mem. 15; Binder Decl. Ex. A (statement of basis and purpose for amendment to 38

R.C.N.Y. 19-02).

2. Content Neutrality

The principal inquiry in determining con tent neutrality . . . is whether the government

has adopted a regulation of speech because of disagreement with the message it conveys. The109

governments purpose is the controlling consideration. A regulation that serves purposes unrelated

to the content of expression is deemed neutral, even if it has an incidental effect on some speakers

or messages but not others.110

Plaintiffs do not appear to contend that the Parade Regulations are anything other than

content neutral. Their memorandum states in passing that the regulations are content-based, but

points to no evidence and makes no arguments to support this contention. In any event, it is clear111

that the Parade Regulations have nothing to do with content. The Citys stated purpose in112

enacting them was to ensure the orderly usage of pub lic streets by processions of large groups of

pedestrians, vehicles, bicycles, or animals, which have the potential to disrupt traffic flow and

endanger other users of public roadways. Concerns about traffic flow and safety arise, and the113

Parade Regulations apply, regardless of the purpose or intended message of a particular parade or

procession. The regulations therefore were not adopted because of the Citys disagreement with the

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114

See Ward, 491 U.S. at 792 (regulation requiring performers in bandshell to use city-provided sound equipment and city-retained sound technicians had nothing to do with

content where the citys primary aim was to control noise and prevent audiences from

becoming upset and unruly due to poor sound quality).

115

See, e.g.,Heffron v. Intl Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 650 (1981)

(As a general matter, it is clear that a States interest in protecting the safety and

convenience of persons using a public forum is a valid governmental objective. (citing

Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Cox v. New Hampshire, 312 U.S.

569, 574 (1941)).

116

Ward, 491 U.S. at 798.

117

Id. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)); accord Universal

City Studios, 111 F. Supp. 2d 294, 330.

118

See, e.g.,Eastern Connecticut Citizens Action Group v. Powers, 723 F.2d 1050, 1052 (2d

Cir. 1983).

messages potentially conveyed by group bicycle rides.114

3. Narrow Tailoring

Plaintiffs do not dispute that the City has a valid and substantial interest in securing

the orderly use of public roadways to ensure the safety and convenience of travelers. The real issue115

then is whether the Parade Regulations are narrowly tailored to achieve that end.

A content-neutral time, place, or manner regulation need not be the least restrictive

or least intrusive means ofadvancing a substantial government interest. Rather, the requirement

116

of narrow tailoring is satisfied so long as the . . . regulation promotes a substantial government

interest that would be achieved less effectively absent the regulation. The burden of117

demonstrating that a law is constitutional is on the government.118

As the declarations of Lieutenants Caneco and Gannon show, groups of 50 or more

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bicycles can and often do disrupt the orderly flow of traffic and endanger other travelers. Large

groups tend to ride aggressively, disobey traffic rules, and block intersections. Those that do not

nevertheless have a tendency to impede traffic due to their size alone. A permit scheme ensures that

the police have advance notice of the groups whereabouts so that they may block off the intended

route from vehicular and pedestrian traffic, enforce traffic regulations more effectively, and

coordinate the movements of all large groups proceeding in the City at a given time so as to minimize

there overall impact.

Plaintiffs nevertheless contend that the Parade Regulations are not narrowly tailored.

a. Fifty-Person Threshold

Plaintiffs concentrate their constitutional attack primarily on the Parade Regulations

50-person threshold. They contend that this threshold is arbitrary and lower than necessary to achieve

the Citys substantial interests.

(1) Earlier Proposals

Plaintiffs point first to the fact that the NYPD initially proposed more restrictive 20-

and 30-person thresholds, but settled on the less restrictive 50-person threshold after the earlier

proposals met with public opposition. According to plaintiffs, this shows that the Citys choice of

a 50-person threshold was motivated by the desire to thwart group bicycle rides while producing the

least public outcry and that the threshold it chose is not narrowly tailored to serve a substantial

government interest.

This is unavailing. The City is not prohibited from taking public opinion into account

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119

Pl. Mem. 41.

when passing regulations. It is forbidden only to pass a law that does not further a substantial

government interest that would not be well served in its absence. Furthermore, the fact that the City

ultimately adopted less restrictive regulations than it proposed initially does not demonstrate that the

Parade Regulations are not narrowly tailored. It shows at most that the City believed it could advance

its interests by less restrictive means than it originally thought necessary. If the City initially had

proposed less restrictive measures and then adopted a more restrictive regime, this perhaps would

have shown that the City believed it could accomplish its goals through less restrictive means. But

that is not what happened.

(2) Past Practice

Plaintiffs next argue that the 50-person threshold is overly restrictive because the

NYPD in the past has allowed group rides of 50 or more to proceed without permits. The 50-person

threshold, according to plaintiffs, therefore has been empirically proven unnecessary.119

This, too, is unpersuasive, at least for the present. Simply because large group rides

took place in the past without police interference does not mean that those rides did not disrupt traffic

or threaten the safety of other travelers, or that future rides will not impose the same dangers.

Moreover, to the extent the police were able to manage prior group rides, this does not show that the

NYPD would not be substantially better able to minimize the hazards associated with group rides or

answer the vast demands it faces on scarce law enforcement resources by eliminating the need to

guess the timing, whereabouts, and intended routes of large group bicycle rides.

Plaintiffs cite several cases for the proposition that a regulation is not narrowly

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120

Housing Works, Inc. v. Safir, No. 98 Civ. 4994 (HB), 1998 WL 409701, *3 (S.D.N.Y. July

21, 1998).

121

SeeBery v. City of New York, 97 F.3d 689 (street vendor licencing scheme not narrowly

tailored to prevent street congestion where government made exceptions to the numerical

limit set on licenses by granting additional licenses to certain individuals and groups after

enactment).

122

SeeHousing Works, Inc. v. Safir, 101 F. Supp. 2d 163 (S.D.N.Y. 2000) (50-person limit on

demonstrations in plaza outside City Hall not narrowly tailored to interest of keeping

building entrance clear where larger rallies took place in the past without blocking entrance

and other evidence established conclusively that area could accommodate larger groups);

United Yellow Cab Drivers Assn, Inc. v. Safir, No. 98 Civ. 3670 (RPP), 1998 WL 274295,

*3 (S.D.N.Y. May 27, 1998) (regulation limiting number of taxis in procession to 20 not

narrowly tailored to government interest of preventing traffic disruption where larger

processions of taxis had taken place in the past).

tailored when it has been shown that the government sanctioned activity beyond the numerical

limits prescribed in the policy. But these cases are inapposite. They involved situations where the120

government enacted a regulation and subsequently made exceptions to it, thus belying the

governments belief that it could afford to be less restrictive while still furthering its substantial

interest, or where past incidents demonstrated that no public danger or nuisance actually would121

occur in the absence of government regulation. Here, by contrast, there is no evidence that the122

government has strayed from its 50-person policy since enacting it in February. Moreover, as

Lieutenants Caneco and Gannon stated in declarations that the Court credits, large group bicycle

rides in the past in fact have impeded traffic and endangered other travelers.

(3) Impact of Large Group Bicycle Rides

Plaintiffs contend nevertheless that the Parade Regulations are unnecessary because

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123

Pl. Mem. 41.

124

Pucher Decl. 24, 31.

125

Id. 47, 51, 53.

group bicycle rides of 50 or more enhance safety and do not disrupt traffic. They rely primarily123

on the declaration of John Pucher, a professor of urban studies and expert on urban transportation

planning and policy issues.

According to Dr. Pucher, cyclists traveling in large groups are more visible both to

pedestrians and motorists. Hence, group riding tends to decrease the number of collisions and

increase safety both for cyclists and pedestrians. Dr. Pucher states also that group bicycle riding124

does not disrupt traffic because bicycles are smaller than vehicles. A group of 50 bicycles therefore

causes less congestion than a group of 50 cars.

125

Even accepting Dr. Puchers assertions arguendo, the Court is not persuaded that the

Parade Regulations are unnecessary to further a substantial government interest. Large groups of

cyclists may be more visible than individual cyclists and may take up less space than large groups

of vehicles, but their lack of predictability nevertheless may endanger other travelers as well as

disrupt orderly traffic flow, and their presence may add traffic volume that otherwise would be

absent. A permit requirement allows the government to avoid these hazards by making the movement

of group bicycle rides more o rderly and predictable and rerouting other traffic such that collisions

with bicycles are even less likely to occur than otherwise would be the case.

For the same reasons, plaintiffs argument that the Parade Regulations are unnecessary

because group bicycling can be managed by ordinary traffic rules is unavailing. If, as Lieutenants

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126

Caneco Depo. Ex. 3, 11.

127

Caneco Depo. 162-64; id. at 81 (impact of 100 cyclists minimal when compared to

1,000).

Caneco and Gannon state, individual group cyclists on occasion do not obey traffic rules precisely

because they travel in groups for example, by corking intersections or running red lights in order

to stay together then ordinary traffic rules plainly are not sufficient. The NYPDs permitting

scheme gives police advance notice of group bicycle ride routes so that police are better able to

enforce the rules of the road.

(4) Lieutenant Canecos Statements

Finally, plaintiffs argue that Lieutenant Canecos statement that groups of 50 or more

cyclists present traffic and safety problems should not be credited. They point to the fact that

Lieutenant Caneco stated in an affidavit prepared in connection with City of New York v. Times Up,

Inc. that the disruption of pedestrian and vehicular traffic is minimal when groups smaller than 100

disobey traffic regulations.126

Lieutenant Caneco explained this apparent inconsistency in a deposition conducted

on April 5, 2007. He stated that he since has changed his belief based on more recent observations

and that in 2005, groups of 100 were relatively small compared to other rides that took place at the

time. He meant only that the disruptions caused by 100-person and smaller groups were minimal

by comparison. Now that he has witnessed the behavior of even smaller groups, Lieutenant Caneco

stated, he has formed the belief that groups as small as 25, perhaps smaller, have the potential to

disrupt traffic.127

The arguable inconsistency in Lieutenant Canecos affidavits perhaps leaves room

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128

See id. at 39 (I had the opportunity to observe all different size groups.); id. at 50 (I have

seen groups of approximately 50 ride along without any . . . problems for a while and then

. . . they tend to break the law by riding through the red lights).

129

Gannon Decl. 7.

130

Id. 11.

131

Id. 13.

to doubt whether he believes a 50-person threshold is more appropriate than, say, a 100-person

threshold. But Lieutenant Canecos statements are not completely irreconcilable. This especially is

so in light of the fact that they were made approximately a year and a half apart and that Lieutenant

Caneco had more of an opportunity to observe groups of cyclists smaller than 100 during that time.128

Any inconsistency in Lieutenant Canecos affidavits, however, in all likelihood does

not matter. Lieutenant Gannon stated in his declaration that groups of bicycles smaller than 50

potentially pose traffic and safety problems, but that the 50-person threshold was reached after

balancing the Citys safety concerns with the concerns voiced by the public regarding the need to

apply for permits for each and every small procession taking place in the City. He added that129

groups of 50 or more are likely to have an impact on vehicular and pedestrian traffic, thereby raising

concerns about the safety of other travelers. A group of fifty people traveling together by bicycle130

or vehicle is likely to create a moving column, thereby blocking the roadway because groups of

that size, whether traveling across the entire width of the roadway or lined up on [sic] groups of two,

tend to try to stay together and disregard traffic regulations in order to do so. Moreover, even131

groups of 50 who obey traffic regulations potentially impede traffic. Because of their sheer size they

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132

Id. 14.

133

Id. 9.

134

There is no need for an evidentiary hearing in light of the fact that Lieutenant Canecos

statements present no necessary inconsistency, particularly as the Court would reach the

same result even if his evidence were disregarded entirely.

135

Pl. Mem. 45.

can prevent other vehicles on the road from merging or turning. And absent coordination with132

other groups of cyclists, they might unexpectedly merge with those groups, thus increasing their size

and overall impact on traffic.133

Having considered the arguments pro and con as well as Lieutenant Canecos

deposition testimony, and having considered also Lieutenant Gannons declaration, the Court finds

that the 50-person threshold furthers a substantial government interest that would be less well served

by, for example, a 100-person threshold.134

b. 24-Hour Applicability

Plaintiffs next attack the Parade Regulations on the ground that they apply to all group

bicycle rides of 50 or more regardless of when they take place. According to plaintiffs, [b]lanket,

round-the-clock route restrictions on group bicycle rides are inappropriate because some rides, like

Jacksons, are held late at night when there is little or no traffic. But the argument overstates the135

Citys burden.

Certainly a permitting scheme that took account of traffic patterns on every possible

route at every possible time of day would be a less restrictive means of advancing the Citys

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136

Pl. Mem. 45.

substantial interests. The Parade regulations, however, need not be drawn so narrowly. They need

only advance a substantial interest that would be less well served in their absence. Plaintiffs offer no

evidence to suggest that no area in New York City experiences vehicular or pedestrian traffic at

night. The Citys permit scheme therefore ensures that the N YPD can take appropriate precautions

in the event that a proposed route were to include an area that was expected to experience late-night

traffic.

c. Fifth Avenue Restriction

Plaintiffs argue also that the Fifth Avenue restriction is inappropriate because Fifth

Avenue is the safest and most desirable on-street southbound route for most group bicycle rides

and that banning group bicyclists from [Fifth Avenue] only imposes added danger on them without

serving any useful purpose. This is unavailing.136

First, when police know in advance what route a large group of cyclists will take, they

are able to block off the route and redirect other traffic. This, if anything, would improve the safety

of cyclists traveling along streets other than Fifth Avenue.

Second, while groups of cyclists might proceed safely down Fifth Avenue, this does

not mean that they do not endanger pedestrians and motorists or otherwise disrupt traffic. Keeping

large groups off Fifth Avenue protects other users of the avenue and thus does not fail to serve any

useful purpose.

d. Frequency of Group Bicycle Rides

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137

Id.

138

Tr., March 29, 2007, at 26;see also id. at 9-10.

Plaintiffs contend that the permitting scheme burdens bicyclists far more heavily than

organizers of annual parades or ad-hoc political demonstrations, for no apparent purpose, because

group bicycle rides occur more frequently than traditional parades. This misses the point. The more137

frequently large group bicycle rides occur, the more frequently the Citys substantial interest in

ensuring the orderly and safe use of its roadways potentially is implicated. While group cyclists may

desire a regulation that better accommodates their desires, this does not make the Parade Regulations

unconstitutional. As noted, the narrow tailoring requirement does not require the City to use the least

restrictive means to further its substantial interes ts, nor does it require the City to tailor its regulations

to each potential speakers unique circumstances and preferences.

e. The Chief Officer Requirement

Finally, plaintiffs argue that the requirement that parade permit applicants designate

a chief officer is overly burdensome. They claim that this requirement will deter potential

organizers of large group rides from applying for permits because they will be fearful of taking legal

responsibility for the actions of other riders.

At oral argument, the City explained that the chief officer designated in a permit

application is not responsible legally for the actions of other cyclists but rather is intended to be a

point person with whom the police can discuss in a meaningful way how the proposed event is going

to be handled. The City represented also that it would change the permit application form to clarify

138

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139

Id. 26-27.

In that vein, the City stated also that it would change the application form to clarify that the

applicant need not specify the measured width of the roadway to be occupied, see 38

R.C.N.Y. 19-03(b)(2)(vii), but only the number of traffic lanes expected to be occupied

by the group procession, Tr., March 29, 2007, at 26.

140

Bryant v. City of New York, No. 99 Civ. 11237 (LMM), 2003 WL 22861926, *8 (S.D.N.Y.

Dec. 2, 2003) (citing cases).

141

E.g., United States v. Monsanto, 924 F.2d 1186, 1200 (2d Cir.) (en banc) (citing cases),

cert. denied, 502 U.S. 943 (1991); accord Natl Assn of Indep. Insurers v. State, 89 N.Y.2d

950, 952, 655 N.Y.S.2d 853, 854 (1997) (citingAlliance of Am. Insurers v. Chu, 77 N.Y.2d

573, 585, 569 N.Y.S.2d 364, 370 (1991)).

this, thus eliminating the possibility that a potential applicant would be deterred from seeking a

parade permit. Accordingly, plaintiffs argument is moot.139

Even absent this representation by the City, plaintiffs argument still would fail.

Generally, [i]mposing criminal liability for the acts of another offends substantive due process.140

If the Parade Regulations were interpreted to impose liability on a chief officer for the actions of

other cyclists, they in all likelihood would be unconstitutional. The Parade Regulations nevertheless

easily are susceptible to the interpretation proffered by the City during oral argument, which would

dispel the spectre of unconstitutionality. Where a statute is susceptible to two possible

interpretations, one of which renders the law unconstitutional and the other of which does not, a

court must adopt the constitutional construction. Plaintiffs interpretation of the Parade141

Regulations therefore must be rejected. Accordingly, as the Parade Regulations grant the City no

authority to prosecute chief officers for the conduct of other cyclists, it cannot be said that the permit

application form reasonably can be interpreted to threaten such prosecution and therefore deter

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142

See Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33, 39 (2d Cir. 1983) (comment by

public official discouraging stores from selling certain board game could not reasonably be

interpreted as a threat of punishment for exercise of First Amendment rights where

officials employer lacked the power to impose sanctions on merchants who did not

respond to [the officials] requests.).

143

As one court aptly has noted,

[T]hough strict scrutiny must, of course, be strict, it must, at least in someinstances, be applied with limited deference to the decisionmakers exercise of

judgment. If we pretend that it is otherwise, we adopt a model for strict scrutiny

under which no states attempt to deal with certain problems can survive, and so

very real and dangerous problems must be left unaddressed. Every place where the

line is drawn is arguably either overinclusive, because too much activism is

restricted, or underinclusive, because too much threat to judicial open-mindedness

is tolerated. The courts then occupy the enviable position of not being required to

say in advance what line would be permissible, but of being privileged to veto

every possible legislative attempt to draw the line because it would have been

possible to draw the line somewhere else. If strict scrutiny is simply a way to strike

down laws, in which any law is doomed as soon as we invoke strict scrutiny, it is

a charade.Republican Party of Minnesota v. White, 416 F.3d 738, 786 (8th Cir.2005).

While the substantial interest test that applies here is called intermediate scrutiny, e.g.,

Vincenty v. Bloomberg, 476 F.3d 74, 84 (2d Cir. 2007), the Eighth Circuits point

nevertheless is apposite.

144

See, e.g., Caneco Depo.

expression.142

* * *

The Parade Regulations, like all prophylactic measures that draw numerical lines,

inevitably are overinclusive. Not every group bicycle ride of 50 or more participants necessarily143

will disrupt traffic, endanger other travelers, or disobey traffic regulations. Nevertheless, the144

NYPD has observed that group bicycle rides of that size can and do present such risks and concluded

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145

Id. at 492.

146

346 F. Supp. at 492 (discussing Critical Mass rides involving several thousand cyclists).

147

Ward, 491 U.S. at 802.

that police would be able better to prevent safety hazards and enforce traffic regulations if they knew

in advance where and when large groups of cyclists were riding. It therefore chose to enact its

permitting scheme, which does not forbid cyclists from traveling in large groups, but simply requires

them to notify the police in advance of their intended routes.145

In the last analysis, the Court is not persuaded that plaintiffs are likely to prove that

the Parade Regulations are unnecessary to further a significant government interest, or that that

interest would not be served less effectively in their absence. Indeed, as Judge Pauley noted inBray

v. City of New York, large groups of cyclists cannot simply go wherever their wheels take them

month after month without someone getting hurt. At some point, bicycle rides of a certain

magnitude require coordination with the police for everyones safety.146

4. Ample Alternative Channels

The final requirement, that the Parade Regulations leave open ample alternative

channels of expression, is easily met. The regulations do not ban group bicycle riding on public

roads. Nor do they have any effect on the quantity or content of that expression. And while they147

do provide that groups of 50 or more may not bicycle together on much of Fifth Avenue, the

regulations leave all other roads in New York City open to cyclists in most circumstances. Plaintiffs

perhaps have shown that these remaining avenues of communication are less convenient and

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148

38 R.C.N.Y. 19-04(b).

149

505 U.S. 123 (1992).

150

Id. at 130 (quotingHeffron, 452 U.S. at 649); accordTransp. Alternatives, Inc. v. City of

New York, 340 F.3d 72, 77-78 (2d Cir. 2003).

151

Forsyth, 505 U.S. at 131 (quoting Shuttlesworth, 394 U.S. at 150-51).

desirable, but not that they are insufficient for conducting large group bicycle rides or communicating

the messages group rides supposedly express. M oreover, the regulations provide that in the event a

parade permit application is denied for any reason other than that the applicant provided incomplete

information, proposed unlawful conduct, or made material representations on the application form,

the NYPD is required to employ reasonable efforts to offer the applicant a suitable alternative

location, date, or time for the proposed parade or procession. Accordingly, the Parade Regulations148

sufficiently provide cyclists with ample means to express themselves through group bicycle rides.

D . Prior Restraint and Vagueness

Regulations that require permits for expressive activity in traditional public fora are

prior restraints on speech and therefore are unconstitutional if they vest in a public official unbridled

discretion to deny permits. The Supreme Court held inForsyth County v. Nationalist Movement149

that a regulation that allows arbitrary application is inherently inconsistent with a valid time, place,

and manner regulation because such discretion has the potential for becoming a means of suppressing

a particular point of view. To curtail that risk, a law subjecting the exercise of First Amendment150

freedoms to the p rior restraint of a license must contain narrow, objective, and definite standards

to guide the licensing authority. A permit scheme is unconstitutional if it involves appraisal of151

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152

Id.

The Second Circuit passed on the vagueness of an earlier version of the Parade Regulations

inMacDonald v. Safir, 206 F.3d 183 (2d Cir. 2000). The court there held that the languageof N.Y.C. Ad. C. 10-110(a)(1), allowing the Police Commissioner to deny a permit if he

believes a parade will be disorderly in character or tend to disturb the public peace, and

10-110(a)(4), allowing the Commissioner to grant a special permit for occasions of

extraordinary public interest, not annual or customary, were not sufficiently precise to

survive the facial challenge, standing alone.Id. at 192 (quoting Turley v. Police Dept of

New York, 167 F.3d 757, 762 (2d Cir. 1999). The court held, however, that the Parade

Regulations could be saved if the City could show that the Police Commissioners

discretion was constrained by administrative construction or by well-established practice.

Id.

The City subsequently enacted 39 R.C.N.Y. 19 et. seq. Section 19-01(a) clarifies that

disorderly in character applies to parades that violate certain sections of the Penal Law

and that would otherwise present an unreasonable danger to the health or safety of the

applicant, parade participants or other members of the public, or cause damage to public or

private property. Plaintiffs do not here challenge this definition. Nevertheless, the Supreme

Court in Thomas v. Chicago Park District, 534 U.S. 316 (2002), held that an almost

identical standard passed constitutional muster. See id. at 324. The Court held also that a

permitting schemes constitutionality would be reinforced if it required the issuing official

to specify the reason for which a permit could be denied, required explanations for denial,

and placed time limits on the processing of permit applications. See id. Section 19-04

satisfies all of these criteria.

Section 19-01(b) defines an occasion of extraordinary public interest more narrowly so asto constrain the Police Commissioners discretion in granting special permits. Plaintiffs do

challenge this language. Their argument is addressed below in the text.

Notably, the New York courts have rejected attacks on Section 10-110 as vague in light of

Supreme Courts Thomas decision and the enactment of 38 R.C.N.Y. 19 et seq. See

People v. James, 7 Misc. 3d 363, 371-72, 793 N.Y.S.2d 871, 877-78 (N.Y. Crim. Ct. N.Y.

Co. 2005);see alsoPeople v. Cohen, 6 Misc. 3d 1019(A), 800 N.Y.S.2d 352, (N.Y. Crim.

Ct. N.Y. Co. 2005) (noting that 10-110 upheld as constitutional in James).

facts, the exercise of judgment, and the formation of an opinion by the licensing authority.152

1. Events of Extraordinary Public Interes t

Plaintiffs challenge the events of extraordinary public interest exception to the

Parade Regulations Fifth Avenue restriction. An event of extraordinary public interest is defined in

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153

38 R.C.N.Y. 19-01(b).

154

Centamore Decl. 18.

Section 19-01(b) to include celebrations organized by the City honoring the armed forces; sports

achievements or championships; world leaders and extraordinary achievements of historic

significance. 153

Plaintiffs do not challenge the extraordinary event exception on its face. Rather, they

claim that the exception has been applied to allow events that do not fit within the language of

Section 19-01(b) to take place on a Fifth Avenue, thus rendering the exception meaningless and

susceptible to arbitrary application.

The only evidence in the record concerning the Citys issuance of special permits

under the extraordinary event exception is the declaration of Lieutenant Centamore, the supervisor

of the division of the NYPD that issues parade permits. According to Lieutenant Centamore, special

permits for use of Fifth Avenue have been granted for a ticker tape parade to celebrate a W orld Series

victory by the New York Yankees and the arrivals in New York of Nelson Mandela and the Pope.

Lieutenant Centamore stated also that the mayor approved a special permit for use of Fifth Avenue

on June 19, 2004 in connection with a relay in which the Olympic torch was carried through 34 cities

across five continents, including New York.154

Plaintiffs do not con tend that the ticker tape parade or the events honoring the Pope

and Nelson Mandela fall outside Section 19-01(b). They do claim, however, that [t]he mayoral

permission given to the [Olympic relay] cannot be squared with any reasonable interpretation of

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155

Pl. Mem. 50.

156

Se